Speculation that in the coming days President Trump will end the Deferred Action for Childhood Arrivals (DACA) program has been growing stronger by the minute. If DACA were to end, it could happen in a variety of ways.
First Possibility: Allow DACA to sunset, and allowing those who presently have DACA and a work permit (with validity periods up to two years) to maintain such protection/benefits until it expires.
Second Possibility: DACA could be terminated and previously issued deferrals of deportation and work permits would be immediately invalidated, and thereby placing the nearly 800,000 DACA recipients at risk for deportation.
Third Possibility: Being of the greatest concern would be that DACA applicants’ personal information, including addresses will be shared with Immigration and Customs Enforcement (ICE). Although it unclear whether ICE would be legally permitted to use information from DACA application for the purposes of immigration enforcement, I feel somewhat confident that ICE lacks the resources to go after every DACA recipient. Nevertheless, everyone should acknowledge this is a possibility and so should prepare themselves for every scenario.
United We Dream (UWD) has provided tips on how DACA beneficiaries may protect themselves should they find themselves at risk of being apprehended by ICE. The following is a summary from their recommendations.
Do Not Open Your Doors— ICE cannot come into your home without a warrant signed by a judge, or you (or someone) giving them permission to enter the home.. With your door shut, ask ICE to slide the signed warrant under the door or push it up against a window. so that it may be reviewed.
Exercise Your Right to Remain Silent — It’s important for you to remain silent and ask to speak to your attorney. Simply tell the immigration officer: “I am exercising my fifth amendment right and choosing to remain silent until I speak to my attorney.”
Do Not Sign Anything Before Speaking to an Attorney — ICE and Customs Border Protection (CBP) may attempt to pressure or coerce you into signing your own deportation order. This is also known as a voluntary departure. Do not sign anything that they give you without first speaking to an attorney.
Record Your Encounter — Take note of badge numbers, name of officers, the number of agents, time, type of cars they used, and exactly what happened. Reporting this information will help advocates determine whether any rights violations occurred.
Report Your Encounter — UWD runs a hotline for people to report activity of ICE, CBP, or any other enforcement agencies. Report the activity by calling the hotline at 1–844–363–1423.
Contact an Immigration Lawyer — Get a trustworthy immigration attorney and explore all options to fight your case. If detained, you might be able to pay to be released on bond.
Protect Your Assets— If you bought a vehicle, home, or have a business, prepare a plan for how you will maintain them if you lose your job or are put into deportation proceedings.
Empower Others to Inquire About Your Case— Prepare a Third Privacy Waiver Form with your attorney or BIA representative. This form allows a third party of your choice (congressional office, another person that is not a family member, a non-profit organization) to request any information about your detention, immigration or deportation case from an immigration enforcement agency like ICE, CBP, or U.S. Citizenship and Immigration Services.
Prepare Your Documents— Make a folder of documents that will prove your physical presence as far back as you can. Make a copy of the front and back of your important documents such as passports, work permits, social security cards, drivers’ licenses, leasing contracts, G-28 form, Third Party Waiver, and keep the copies and originals in a safe place.
Make Plans for your Children— If you have children (under the age of 18), whether or not they are U.S. citizens, take the time to have emergency guardianship papers in place. This will provide you with peace of mind knowing how your child will be cared for if you are detained or deported. Apply for, renew, and keep safe their valid passports.
Prepare a Phone Tree— In case of detention, you need to have one person who can connect and activate all of your support system — family, teachers, mentors, and friends who will support you and your loved ones.
The coming days will be difficult, but being prepared in case DACA ends is a powerful step that can be taken to protect you and your family.
United States Citizenship and Immigration Services (USCIS) Publishes a Draft of its Guidance Policy Manual that Proposes Beneficial Changes to the Term "Extreme Hardship" When Adjudicating Form I-601 and Form I-601A Provisional Waivers
Last month, U.S. Citizenship and Immigration Services (USCIS) issued draft guidance on what constitutes “extreme hardship” for purposes of an immigration waiver. The guidance is a component of the executive actions on immigration announced in November 2014. Many had hoped that the anticipated guidance could help remove obstacles to obtaining legal permanent status in the United States. The guidance a draft only and has not gone into effect. USCIS seeks public comments and feedback no later than November 23, 2015. Following review of the comments, USCIS will issue a final version. To see the draft, please look below.
The immigration laws contain several waivers that allow noncitizens to overcome certain bars to admission (such as having unlawful presence in the United States) where certain family members (called “qualifying relatives”) would suffer “extreme hardship.” Unfortunately, immigration regulations do not define the term “extreme hardship.” As a result, USCIS has failed to apply the hardship standard consistently. In a November 20, 2014 memorandum, Secretary of Homeland Security Jeh Johnson directed USCIS Director Leon Rodriguez to “clarify the factors that are considered by adjudicators in determining whether the ‘extreme hardship’ standard has been met.” In issuing such a directive, his intent was clear: “It is my assessment that additional guidance about the meaning of the phrase ‘extreme hardship’ would provide broader use of this legally permitted waiver.”
Whether the final guidance will achieve the goal of “broader use” of the waiver remains to be seen. The draft guidance, in many ways, does not veer far from current guidance, albeit limited, that the immigration courts and the Board of Immigration Appeals have provided over the years. It also seems to add unexpected detail and layers of analysis, calling into question whether implementation will be difficult and the Secretary’s goal less obtainable.
Individuals applying for a waiver today must show that there would be extreme hardship to the qualifying relative if the family were separated (i.e., the relative remained in the United States) AND if the family member relocated outside the United States. Importantly, the draft guidance does not require the applicant to show hardship in both circumstances. Rather, if the applicant can pass a threshold finding that it is “reasonably foreseeable” that the qualifying relative would either remain in the United States OR relocate abroad, he or she need not demonstrate hardship in both situations.
One place where the guidance falls short is that it fails to include a list of situations where a presumption of extreme hardship exists, i.e., certain situations that automatically would result in a finding of hardship. The November 20 Johnson memo actually directed “USCIS to consider criteria by which a presumption of extreme hardship may be determined to exist.” As the Secretary pointed out, such presumptions exist in other immigration policies. Instead, the draft guidance offered the term “special circumstances”—circumstances that “would often weigh heavily in favor of finding extreme hardship.” These special circumstances include where the qualifying relative has been granted asylum or refugee status, is disabled, or is on active military duty; where the State Department has issued a travel warning to a country of relocation; and where there is a substantial change regarding the ability to provide care of an applicant’s children.
USCIS made a good decision to publicly release the draft guidance for public comment. This is an opportunity for stakeholders to carefully review the detailed guidance and make recommendations that will help the agency to fulfill its promise of waivers that are more broadly available. Once the guidance is finalized, it will be crucial to monitor how it is implemented in the field, as that will be the true test of its success.
Call our office if you need help with Form I-601 Waiver and/or Form I-601A Provisional Waiver. Our office will inform you of such updates and assist you through the process.
On November 20, 2014, President Barack Obama announced his plans for a series of executive actions on immigration policy. An important centerpiece to the plans include the Deferred Action for Parental Accountability (DAPA) program, which will provide temporary immigration relief to qualifying undocumented foreign nationals.
Presidential Executive Action
The President is addressing deficiencies in the current immigration system through this plan of implementing several executive actions. Moreover, the President indicated his desire and intentions to focus enforcement on criminals. Lastly, the President recognized he lacks the authority to provide undocumented individuals a pathway to citizenship, and hopes Congress will become motivated to address the immigration problem through a comprehensive bill.
Overview on DAPA
Those who are approved for the DAPA program will be protected from being deported for a period of three years, and will also be issued temporary work authorization. NOTE: A DAPA recipient will not have legal status, nor will they have access to becoming a lawful permanent resident.
Eligibility Requirements for DAPA
The requirements for individuals to qualify for DAPA are that they:
Application Process for DAPA
It is not yet possible to apply for DAPA. The U.S. Citizenship and Immigration Services (USCIS) is expected to initiate the program by May 19, 2015. In the meantime, those individuals who plan to apply for DAPA may wish to begin collecting documentation to establish eligibility. Such documents may include: proof of identity (ie. birth certificate and valid passport); proof of parentage of a U.S. citizen or permanent resident son or daughter (ie. birth certificate of child); and proof of continuous residence for the required time period (ie. bills, tax returns, contracts, paystubs, etc).
The series of executive action plans announced will prompt prompt unscrupulous individuals to try to take advantage of vulnerable foreign nationals. Until there is an official announcement, no applications can be filed. It is important to utilize reliable sources for information and assistance in immigration matters. Read more about how to identify and avoid immigration scams on the USCIS WebSite here.
You can remain updated on the progress of the DAPA progam by checking our website, liking us on Facebook here, or requesting to be placed on our CONTACT LIST by emailing the attorney at email@example.com.
NOTE: There is a strong likelihood that several (not all) DAPA recipients will be eligible to seek Adjustment of Status (green card) after acquiring and utilizing Advance Parole travel benefits. Attorney Mario Zapata has succeeded in obtaining green cards for various clients who previously were issued Deferred Action for Childhood Arrivals (DACA). For more information on Adjustment of Status for DACA recipients under Matter of Yarabally, please go here. This type of case must be carefully evaluated by an experienced immigration attorney, as past immigration violations (ie. multiple entries, detentions, removals, crimes) could pose problems.
The Law Office of Mario Zapata will continue to closely monitor and track progress made the executive action programs, and provide readers with such updates analysis as soon as new information is released. We do not suspect that any further significant plans will be released in the near future absent an agreement on a comprehensive immigration reform bill.
Mario Zapata is an immigration attorney practicing out of Orange County, CA and represents clients nationwide.